American Oil Co. v. McCluskey

162 S.E.2d 853, 118 Ga. App. 123, 1968 Ga. App. LEXIS 1328

• Court: Court of Appeals of Georgia
• Decided: June 14, 1968
• Docket: 42734
• Status: Published

Opinions

Eberhardt, Judge.

Since there is one issue on which a majority of this court are agreed that there must be a reversal, and since there is likelihood that the deficiency in proof concerning the number of employees which the company had on the date of the incident will be supplied on another trial, bringing it within the ruling of the Supreme Court, we do not deal with other issues.

One of the errors enumerated is the overruling of defendant’s motion for mistrial, the ground being that during the course of his argument to the jury plaintiff’s counsel asserted: “The third element that you have to decide is, if there was an injury and if there is liability, then is there ability to pay, and, if so, how much should this mother be compensated for the death of this child? Now there is no doubt in your mind and there is no doubt in my mind that there is ability to pay. In a lot of cases you have to worry about that. You have to consider where the man works that has been sued, and, if he can pay, the judgment that you think will be fair. In this case you don’t because American Oil Company has assets untold, and whatever you decide this twelve-year-old child . . .” (Emphasis supplied.)

At this point counsel for the defendant moved for a mistrial on account of the prejudicial remarks, wholly unsupported by any evidence in the case. The court overruled the motion, saying “I caution you not to go into the matter before the jury, and I specifically instruct the jury to disregard that.”

Counsel for the defendant renewed their motion for mistrial, and the court overruled it, saying “I admonish counsel not to touch upon that matter again in his argument.”

This cautioning or admonishing of counsel and instruction to the jury was the extent of the court’s effort to eliminate from the case the effect of the prejudicial argument. There was no rebuking or reprimanding of counsel.

This argument of plaintiff’s counsel concerning the financial condition of the defendant went entirely beyond any possibility of correction by a mere admonition to the jury to disregard it or to counsel to refrain from further touching upon it. It was patently and grossly harmful. Nothing short of a declaration of a mistrial could erase the harm. What the court did was not enough.

As Mr. Justice Jackson observed in Krulewitch v. United States, 336 U. S. 440, 453 (69 SC 716, 93 LE 790), “The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.” And dealing with this subject Judge Learned Hand asserted that a limiting instruction of this sort is a “recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else.” Nash v. United States, 54 F2d 1006, 1007. “[I]t is indeed very hard to believe that a jury will, or for that matter can, in practice observe the admonition.” United States v. Delli Paoli, 229 F2d 319, 321.

“The trial of cases is more than a mere contest between the parties. In all trials the State is interested that a fair trial may be had, in order that justice may be done.” Ga. Power Co. v. Puckett, 181 Ga. 386 (1) (182 SE 384).

“The Constitution guarantees to every defendant a fair and impartial trial. Every litigant is entitled to the same right, and he does not get it where any influence except the law and the evidence is allowed to affect the minds of the jury. Hisses, cheers, demonstrations, improper appeals, argument not warranted by the evidence, and the like, all constitute an impairment of the right to a fair trial.” Patton v. State, 117 Ga. 230, (43 SE 533). Indeed, Code § 81-1009 provides that: “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the counsel ... or ... he may order a mistrial if the plaintiff’s attorney is the offender.” (Emphasis supplied.)

While a party is not entitled to a perfect trial — a thing bordering on impossibility — he is entitled to a fair trial, which the courts can and should afford. Lutwak v. United States, 344 U. S. 604, 619 (73 SC 481, 97 LE 593); Dowis v. McCurdy, 109 Ga. App. 488, 497 (136 SE2d 389).

When arguments of this kind are made to the jury fairness is no longer possible, for prejudice calculated to drive fairness out has been substituted. In a similar situation where counsel argued that “The Southern Railway Company has plenty of money to hire lawyers to defend a case . . . and they have plenty of money to pay off the damages,” and upon objection thereto counsel for the plaintiff apologized, retracted his statement, asked the jury to disregard it, and the court instructed the jury not to consider it or to be influenced by it in any manner, we reversed a verdict and judgment for the plaintiff, observing that “the language complained of was highly improper and exceedingly prejudicial to the defendant . . . and the withdrawal of the statement by counsel and the statement of the judge in reference thereto, in our opinion, was hardly sufficient to eradicate from the minds of the jury the injury already done the defendant; and consequently it was error for the court to overrule the defendant’s motion for mistrial.” Southern R. Co. v. Black, 57 Ga. App. 592, 593 (196 SE 291).

We reversed the denial of a mistrial in John J. Woodside &c. Co. v. Reese, 105 Ga. App. 602 (6) (125 SE2d 556) because “the language employed by plaintiff’s counsel likely impressed upon the minds of the jury that there was a great difference between the financial ability of the plaintiff and the defendants, and also the defendants’ ability to pay damages. The argument was not based upon any issue in the case, and when brought to the surface of conscious thought, was prejudicial to the defendants.” (Emphasis supplied.)

Cases further illustrating the point are Morris v. Maddox, 97 Ga. 575 (25 SE 487); Patton v. State, 117 Ga. 230 (43 SE 533); Styles v. State, 129 Ga. 425 (59 SE 249, 12 AC 176); Fitzgerald v. State, 184 Ga. 19 (190 SE 602); Southern R. Co. v. Gentle, 36 Ga. App. 11 (135 SE 105); Veazey v. Glover, 47 Ga. App. 826 (171 SE 732); Brown v. Wilson, 55 Ga. App. 262 (189 SE 860); United Motor Freight &c. Co. v. Hixon, 76 Ga. App. 653 (47 SE2d 171); American Cas. Co. v. Seckinger, 108 Ga. App. 262 (3) (132 SE2d 794); Brown v. State, 110 Ga. App. 401, 406 (138 SE2d 741), and cases there cited; Usry v. Bostick, 112 Ga. App. 76 (3) (143 SE2d 781), reversed because of our erroneous construction placed on the language there involved, Bostick v. Usry, 221 Ga. 647 (146 SE2d 882), and the many cases there cited.

Reliance on McCoy v. Scarborough, 73 Ga. App. 519 (37 SE2d 221) as authority for asking a contrary holding is misplaced. In that case plaintiff brought suit to recover $610 alleged to be due on a painting contract. There were no factors such as the unfortunate loss of a life from the mishandling of a pistol by a man who admitted that he had consumed several drinks of whiskey, as there were here. It is the accenting of these by grossly improper argument that inflames prejudices and may result in a wrongful or unjust verdict. In McCoy it was not difficult for the court to correct the matter by an admonition. The reverse is true here.

The principle has long been established in our law — as long as the courts have sought to see that litigants are afforded impartial trials to the end that justice may result. Soon after the Supreme Court was created the assertion was made that “For counsel to undertake by a side wind, to get that in as proof which is merely conjecture, and thus to work a prejudice in the mind of the jury, cannot be tolerated.” Berry v. State, 10 Ga. 511, 522.

“We do not know that more need be said, as to the proper conduct of counsel in arguing causes ... To depart from the testimony, much more, voluntarily to pervert or misrepresent or add to it, is a great wrong.” Lockett v. Mims, 27 Ga. 207, 210.

Judgment reversed and a new trial ordered.

Felton, C. J., Bell, P. J., Jordan, P. J., Hall, Pannell, Deen and Whitman, JJ., concur. Quillian, J., dissents.